1996 Redux on Wiretaps: Is Anybody Listening?

I'm angry but not surprised that the Democrats propelled the FISA Amendment to passage this past weekend. Matt Stoller today has the response from the ACLU to his post yesterday accusing it of dropping the ball. They didn't of course. It was the Democratic leadership who not only dropped the ball, but picked it up and ran with it. The ACLU writes to Matt:

We met with Pelosi and with Reid -- we spoke with the staff from every leadership office. They did not listen to us. It was dem leadership who scheduled the vote on these particular bills. Why be mad at us and not at them? We met with them. They rebuffed our arguments.

We weren't notified that the bill was moving until 6 days before when Rep. Harman let it slip on Late Edition with Wolf Blitzer. We gave it the full court press: with action alerts, meetings with Members of Congress and Senators and their staff.

Pelosi and friends spent the entire week negotiating with the DNI and cut out ALL the civil liberties groups - not just the ACLU.

The Democrats have pulled this before, including the last-minute wrangling right before the August recess. Their reason then, like now, was that they were afraid of appearing soft of crime and terrorism.

Let's take a walk back to 1996.

More...

The following is an article I wrote in 1996 (originally published in The Champion at 20 Champion 33, available on Lexis.com) titled Partisan Politics vs. the Bill of Rights. It was about a host of privacy-intrusive surveillance measures then being proposed by Clinton and the Democrats in the name of the war on terror. With a few word substitutions, like "9/11" for "TWA Flight 800" and Bush for Clinton, there's not much difference between then and now. Except that then, conservatives in Congress came to the rescue. Unfortunately, they too are now on the wiretapping bandwagon.

Congress has once again placed itself on a collision course with the Bill of Rights. With the presidential and congressional elections just two months away, our politicians are once more trying to demonstrate their tough stance on crime and concern for our security by introducing and promising swift passage of legislation that diminishes our privacy rights and provides even greater powers to federal law enforcement agencies.

Using the tragedies of TWA Flight 800 and the Olympic bombing in Atlanta to instill fear of terrorism in the heart of every American, our politicians are promising to make us safe and secure by giving the FBI the power to wiretap more of us with less judicial scrutiny, to access our personal and financial records with no judicial oversight, and to seize our assets by classifying us as "terrorists" based upon our personal and political beliefs.

President Clinton and the Democrats are behind this latest assault on our privacy rights. On the eve of the first anniversary of the Oklahoma bombing in April, 1996, Congress passed the Anti-Terrorism and Effective Death Penalty Act of 1996. The Democrats were very disappointed, however, because the bill passed without proposed expansions of wiretapping authority. In May 1996, Reps. Charles Schumer (D-NY) and John Conyers (D-MI) introduced H.R. 3409 "to combat domestic terrorism." The bill, titled the "Effective Anti-Terrorism Tools for Law Enforcement Act of 1996," would expand the powers granted to the FBI to engage in multi- point (roving) wiretaps and emergency wiretaps without court orders, and to access an individual's hotel and vehicle and storage facility rental records. It also relaxed the requirements for obtaining pen register and trap and trace orders in foreign intelligence investigations.

A lesser known and far less advertised provision provides for the amendment of the statutory wiretap suppression remedy in 18 U.S.C. 2515. The Section now provides that evidence of intercepted communications may not be admitted in any criminal trial or hearing, or before a grand jury, if disclosure of the information would be in violation of the wiretap chapter. The amendment in H.R. 3409 provides that the suppression remedy in 2515 would not apply unless the violation involved "bad faith by law enforcement."

In July 1996, following the Saudi bombing, the crash of TWA Flight 800 and the Olympic park bombing, President Clinton asked Congress for immediate passage of the new anti-terrorism bill. There was also a renewed push to pass a bill to fund the Digital Telephony Act passed last Congress (the "Communications Assistance to Law Enforcement Act," PL 103- 414, commonly known as the "National Wiretap Plan").

The Digital Telephony Act was introduced in 1994 at the request of the FBI, to allow the agency to increase its wiretapping capabilities. The Act requires communication companies to make their upgraded digital systems easier for federal agents to tap. Currently, the FBI can wiretap from copper wire phone lines, but not from fiber optic digital phone lines. The plan the Administration has devised would conscript the phone companies to build capability into their phone systems for the FBI to tap one percent of all phone calls made (one out of every one hundred calls). The cost would be a minimum of $500,000,000. Where would the money come from? Get this. According to the latest Administration terrorism proposals, it would come from the unspent funds at the end of the year of all federal agencies with law enforcement or intelligence responsibilities!

Once again, on short notice and only days before the August recess, NACDL's Legislative Director Leslie Hagin initiated a marathon, nonstop campaign to eliminate the wiretapping and digital telephony proposals from the proposed anti-terrorism legislation. Joining with the American Civil Liberties Union, and with our conservative, sometimes-bedfellows, the National Rifle Association, the Second Amendment Foundation, the Law Enforcement Alliance of America, among others, a major lobbying effort was launched to stop this assault on our privacy rights. July 31, 1996, President Clinton was still pleading for the bill's passage. The negotiators in Congress were deadlocked over the wiretap provisions!

The conservative House Republicans came to the rescue. They demanded that new privacy safeguards be enacted as the price for any increased wiretapping authority, which would provide individuals with the right to sue individual law enforcement officers for wrongful collection of private information and increase the criminal penalties for such violations, as well as penalties for the wrongful disclosure of wiretap information. Their position was significantly enhanced by the recent acknowledgment by the White House of its improper procurement of hundreds of private and restricted FBI files.

Late in the night of August 1, a House Republican agreement was reached. August 2, 1996, the House passed H.R. 3953, the "Aviation Security and Anti-Terrorism Act of 1996." The law is a stripped-down version of its predecessor. The proposals for increased wiretap authority were excluded. The digital telephone funding provision was deleted. Instead, the bill actually enhances privacy safeguards under the Privacy Act and the wiretap laws, by increasing the penalties for illegal use of electronic surveillance information. H.R. 3953 adds terrorist offenses as RICO predicates. It directs the Secretary of State to proceed with the designation of foreign "terrorist organizations," as provided in the Anti-Terrorism and Effective Death Penalty Act enacted in April, 1996; and thereafter, directs the Secretary of the Treasury to accordingly freeze the assets of, and the Attorney General to initiate the removal of, known alien terrorists and criminals. The bill also establishes a National Commission on Terrorism to make reports to Congress; and directs a study on the feasibility of using taggants in black and smokeless powder.

The fight is far from over. President Clinton and Hill leaders from both parties have promised to revive their push for expanding government wiretapping authority as soon as Congress resumes after Labor Day. August 2, Reps. Hyde (R-IL), Conyers (D-MI), Schumer (D-NY) and McCollum (R-FL), among others, introduced H.R. 3960, the "Anti-Terrorism Law Enforcement Enhancement Act of 1996." Simply put, this bill consists of the wiretap provisions excluded from the just-passed H.R. 3953! It expands multi-point wiretapping, provides increased emergency wiretap authority, and relaxes requirements for obtaining pen register and trap and trace orders in foreign counter surveillance investigations. It reduces the number of the progress reports the government is required to submit to the judge during a wiretap, from the typical number of one every ten days (or at any other interval, in the discretion of the judge overseeing the case at hand), to a single report after fifteen days. And it adds yet more offenses to the list of RICO predicates.

Still lurking in the background is the evisceration of the statutory wiretap suppression remedy contained in 18 U.S.C. 2515. The proposed amendment requires a showing of "bad faith" on the part of law enforcement to warrant suppression. At least two bills which include it are still pending in the House: H.R. 3409, described at the beginning of this article; and H.R. 1635, introduced by Rep. Gephardt (D-MO) as the Anti-Terrorism Amendments Act of 1995. No floor action has been taken on either. However, the bad faith provisions could well be revived, given the Administration's promise to redouble its efforts upon Congress's return after Labor Day, to pass legislation increasing the government's wiretapping powers.

There are two months to go to the election. As the races get tighter, the pressures on the candidates will increase. All politicians seem to believe that the magic key to winning lies in proving to the electorate that they are tougher on crime and more concerned about citizen safety and security than their opponent.

We must convince the Democrats (yes, the Democrats) not to tinker with our constitutional liberties and our privacy rights. Many conservative Republicans seem to have gotten the message.

Wiretaps this year under President Clinton increased 30-40 %, according to Frederick Hess, the DOJ official authorizing wiretap applications for the agency. The FBI's own report shows that it is planning to more than double the number of private telephone conversations it intercepts by the year 2004. Statistics from the Administrative Office of the U.S. Courts demonstrate that over one million innocent conversations have been intercepted by law enforcement wiretaps each year for the last ten years. Last year the number of innocent intercepted calls exceeded two million!

Wiretapping is inherently destructive of privacy. According to Donald Haines, the Legislative Counsel for the ACLU, more than 80 percent of all conversations intercepted during law enforcement wiretaps are innocent! During the average wiretap, 2000 calls and 175 people are intercepted.

Wiretaps are rarely used for terrorist offenses. In fact, the government has not sought or used a wiretap for an explosives investigation since the 1980s. Over the last ten years, only 0.2 percent of all wiretap orders were obtained for cases involving such things as arson and bombings!

History demonstrates that when law enforcement agents are provided with expanded wiretap powers, they abuse it. Wiretaps were first widely used in 1939, when President Franklin Roosevelt, authorized the FBI to engage in wiretapping to ferret out subversive activity. Court orders were not necessary then. The Counter Intelligence Program (Cointelpro), initiated by J. Edgar Hoover in 1956, brought intrusive FBI wiretapping to new levels. Initially targeted at communists, in practice, it reached anyone Hoover chose, including Martin Luther King, Jr., right-wing groups and left-wing Vietnam War protesters. It reportedly didn't end until 1971, four years after the Supreme Court declared all wiretaps illegal, and three years after Congress tried to curb the abuse through passage of the electronic surveillance title in the U.S. Code.

We must reach out in the next two months to the public as well as to members of Congress. The proposed wiretap legislation is unlikely to reduce or even impact the commission of terrorist acts. Federal agencies do not require more power to combat terrorism. Federal law enforcement already has wiretap authority for such crimes as arson and homicide. Expansion of wiretap powers to include almost every crime is not necessary to combat terrorism. Surely such expansion will cost more in lost liberties than it will gain in security. By relinquishing our constitutional liberties and protections, and by increasing the federal government's authority to eavesdrop on our conversations and investigate our lives, we will not be combating terrorism -- we will be caving in to it.

Is anybody listening?

The moral of the story: The Democrats have never been champions of privacy rights around election time. Leopards don't change their spots. Only if they become convinced that being smart about terrorism, rather than afraid of being perceived soft on terrorism, is what we voters expect and demand or we will boot them out, will they change their tune.

If you want to get started getting that message to your elected officials, Christy at Firedoglake has some great tips from the "You Work for Us Summer Tour."

Another piece of the Clinton "legacy," originally sold as E-911 so you could be found if you dialed 911, but built out to not only always know where you are, but also retain a record of where you were, dating to the activation of your pone, with no statutory protection against warrantless law enforcement access.

"People" need to stop identifying everything as partisan. The leopard that doesn't change its spots is not Democrat, Republican, the minority party or anything like that; the leopard is "power." What we have seen over the past week is the exercise of power over the citizenry, plain and simple. Both parties wanted it because it serves the uses of the powerful.

At least, that's the simplest explanation of how this all makes sense. When there was no fight on this issue from the Dems, what did Occam's Razor find?

...for recalling the 1996 bill. I'm glad I'm not the only one, as I sometimes felt like I was, who remembered that assaults on our civil liberties in the name of "fighting terrorism" did not suddenly begin in 2001 and are not the exclusive possession of one political party.

First, I'd like to know how the ACLU knows that more than 80% of all conversations intercepted during law enforcement wiretaps are innocent? Second, I'd like to know what the government does with "innocent wiretaps"? Does it stockpile them or are they destroyed? This goes to the current FISA debate as to how intercepted communications are "used."

It looks like the reports for wiretapping warrants on th federal level only cover domestic wiretapping for criminal investigative purposes. That would answer my question for what they do with the eavesdropping transcripts. I'm guessing that they are sealed and filed with the Courts so there is no misuse.

FISA warrants are excluded from thes reports. It will remain a mystery what the NSA or FBI do with the information or conversations intercepted with warrants. Without warrants and without reporting and accounting, anything goes.

The Democratic Party, which has long prided itself on its support for civil liberties, seems altogether to have lost its soul, and the Republican Party, which long contained a strong element of libertarianism and respect for individual freedom-- particularly in economic matters-- has given up any claims to providing a counterweight to a deluded and incompetent President.

Meteor Blades went on in his post on Sunday to come up with what I thought was the most painfully truthful and damning piece of contexualizing of the problem I've yet seen with:

There comes a time when giving in to the demolition of constitutional protections can no longer be considered a matter of being weak or unthinking. Rather it must be considered complicity. Enough Already with the Pathetic Excuses

MB is right imo, and the Pelosi and Reid need to be reminded and have their noises rubbed in it every day from now on that they are now not only complicit but morally at least, if not legally, accessories to seven years of felonies committed by Mr. Bush.

There comes a time when giving in to the demolition of constitutional protections can no longer be considered a matter of being weak or unthinking. Rather it must be considered complicity.

FISA has been around since 1978, and the President's right to use warrantless tapping has been approved by four appeals courts. There is little new here.

If a judge objects, the wiretapping can at least continue, pending appeal all the way to the Supreme Court.

This is the kind of review that judges are neither allowed to perform under the Constitution, nor equipped to provide as a matter of policy. Whatever the merits of the 1978 FISA law, no Administration has ever conceded that that law trumped a President's power to make exceptions to FISA if national security requires it. To do so would be a direct infringement on the President's Article II powers as Commander in Chief to protect the nation against its enemies.

The courts have been explicit about this, with the FISA appellate court asserting in a 2002 opinion (In Re: Sealed Case) that "we take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power." FISA established a process by which certain domestic wiretaps in the context of the Cold War could be approved, not a limit on what wiretaps were ever allowed.

Unanimously, the Court held that at least in cases of domestic subversive investigations, compliance with the warrant provisions of the Fourth Amendment was required. 152 Whether or not a search was reasonable, wrote Justice Powell for the Court, was a question which derived much of its answer from the warrant clause; except in a few narrowly circumscribed classes of situations, only those searches conducted pursuant to warrants were reasonable. The Government's duty to preserve the national security did not override the guarantee that before government could invade the privacy of its citizens it must present to a neutral magistrate evidence sufficient to support issuance of a warrant authorizing that invasion of privacy. 153 This protection was even more needed in ''national security cases'' than in cases of ''ordinary'' crime, the Justice continued, inasmuch as the tendency of government so often is to regard opponents of its policies as a threat and hence to tread in areas protected by the First Amendment as well as by the Fourth. 154 Rejected also was the argument that courts could not appreciate the intricacies of investigations in the area of national security nor preserve the secrecy which is required. 155

Congress has acted, however, providing for a special court to hear requests for warrants for electronic surveillance in foreign intelligence situations, and permitting the President to authorize warrantless surveillance to acquire foreign intelligence information provided that the communications to be monitored are exclusively between or among foreign powers and there is no substantial likelihood any ''United States person'' will be overheard. 157

I think you mean to say the president's right to use warrantless surveillance when a domestic compoent is involved is judicially settled. By which I think you mean the "Keith" case in 1971. What is unsettled is whether a judicially approved warrant is constitutionaly required for the president to conduct warrantless searches to obtain foreign intelligence information. The 2002 decision did state that "we take it for granted" but also noted that a plurality opinion of the DC Court of Appeals in Zweibon v. Mitchell suggested to the contrary.

The problem, as you mention, is really who is to decide what is interception of "foreign intelligence information" and who is to decide when the purpose is not gathering of foreign intelligence and blackmailing your political enemies. That is why I think it is fair to say that the primary purpose of FISA is to prevent any surveillance of "US persons" and to protect First Amendment rights unless there is reasonable cause to believe they are acting as a foreign agent or for a foreign power.

associate attorney general of the United States in the Clinton administration, superbly explains why the NSA intercept program is legal under all authorities and precedents:

"President Bush's post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents.
In the Supreme Court's 1972 Keith decision holding that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, the court said explicitly that it was not questioning the president's authority to take such action in response to threats from abroad.

Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant."

Schmidt quotes the same language from the 2002 decision of the Foreign Intelligence Surveillance Court of Review that we have cited repeatedly:

"the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that "All the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority."